Senate Panel to Receive Rehnquist Documents : Administration Ends Impasse on Memos Written as Legal Adviser to Nixon; Scalia Hearings Open

The Reagan Administration, breaking a deadlock over executive privilege, Tuesday agreed to allow Senate Judiciary Committee members to examine memos and other documents that Justice William H. Rehnquist wrote as a legal adviser to former Atty. Gen. John N. Mitchell and ex-President Richard M. Nixon.

The agreement, in which Sen. Paul Laxalt (R-Nev.) played a key role, virtually assures favorable committee action on Rehnquist’s nomination as chief justice and that of Judge Antonin Scalia as an associate Supreme Court justice--unless the documents produce “explosive” information, as Sen. Paul Simon (D-Ill.) phrased it.

“We are getting access to all that we asked for,” Sen. Joseph R. Biden Jr.(D-Del.), the panel’s ranking minority member, said. “The Administration is not holding back anything.”

Invokes Executive Privilege

President Reagan invoked executive privilege last Thursday to withhold the papers, which include any documents on military surveillance of civilians, the Kent State University killings, wiretapping and mass arrests during May Day anti-war demonstrations while Rehnquist headed the Justice Department’s Office of Legal Counsel from 1969 to 1971.

Also covered is the break-in by the White House “plumbers” unit into the office of Daniel Ellsberg’s psychiatrist. Senate aides planned to begin examining the papers Tuesday night and senators were to go over them today.

Justice Department officials contended that releasing the material “would compromise the Office of Legal Counsel’s continuing ability to provide objective legal advice to the executive branch.” The turnaround apparently reflects growing Administration fears that there are sufficient committee votes to subpoena the material, an action that could touch off a protracted fight and delay confirmation.

The agreement allows senators and a limited number of aides to examine the documents and appears to open the door to similar access to papers written by Scalia when he served in the same Justice Department post during the Gerald R. Ford Administration.

Laxalt, a committee member with close ties to Reagan, helped hammer out the agreement in a meeting in the vice president’s office off the Senate floor as committee members recessed from their hearings on the Scalia nomination.

Sen. Edward M. Kennedy (D-Mass.), who had accused the Administration of “stonewalling” and vowed to press for a committee subpoena of the documents, hailed the agreement as “a substantial victory for the constitutional process.”

One area likely to draw attention as the documents are examined is what Rehnquist wrote on military surveillance of civilians. Rehnquist, who had given congressional testimony on the surveillance as a Justice Department official, was criticized for breaking a deadlock and voting with a 5-4 majority as the Supreme Court rejected a claim that the program “chilled” First Amendment rights.

Declines to Answer

The breakthrough on the documents was made as Scalia, in his first day of hearings, declined to answer Kennedy’s question on whether he would vote to overturn the Supreme Court’s abortion decision but assured senators that he was bringing “no agenda” with him to the Supreme Court.

“My only agenda is to be a good judge,” Scalia said, brushing aside Kennedy’s mention of “reports” that opposition to abortions figured in his selection by Reagan. With his wife, Maureen, and nine children sitting behind him in the front two spectator rows, Scalia based his refusal to answer the question on abortion and other constitutional matters on the ground that he might be called to decide such issues as a justice.

Scalia appeared relaxed as he bantered with several questioners, including Sen. Howard M. Metzenbaum (D-Ohio), who jokingly noted that Scalia had bested him at tennis. The nominee seemed much less guarded than Rehnquist last week during his often stormy examination by the panel.

The committee made public Tuesday a letter Rehnquist wrote to committee Chairman Strom Thurmond (R-S.C.), acknowledging that he had been told in 1974 of a covenant on a summer home he bought in Vermont that barred “ownership by members of the Hebrew race.”

When the matter was raised last week by Sen. Patrick J. Leahy (D-Vt.), Rehnquist said he “was amazed” to learn of the restriction, which was discovered in a standard background investigation by the FBI.

But on Monday Rehnquist sent Thurmond a copy of a July 2, 1974, letter from his lawyer, David L. Willis, to an attorney for the seller of the property that mentioned the restriction as one of those to which the property was subject. The letter carried the notation that a copy had been sent to Rehnquist.

“While I do not doubt that I read the letter when I received it, I did not recall the letter or its contents before I testified last week,” Rehnquist said in his letter to Thurmond. He added that he had instructed Willis to take the legal steps necessary to remove the covenant from his Vermont title.

‘No Personal Objection’

Scalia said he had “no personal objection” to the committee’s obtaining memos he wrote as head of the Justice Department’s Office of Legal Counsel. But he said he was concerned that such probing would be bad for the office because his successors would know that positions they took in providing counsel would later be examined.

Metzenbaum, Simon and Kennedy have asked for all memos Scalia wrote in the office on defamation, freedom of the press and other First Amendment issues and the “incorporation doctrine,” which applies the Bill of Rights guarantees to the states.

Scalia on Tuesday won the highest evaluation of “well qualified” from the American Bar Assn.’s standing committee on the federal judiciary--the same assessment given Rehnquist.

In a letter to Thurmond, Robert F. Fiske Jr., the ABA committee’s chairman, noted that interviews of lawyers, law school deans and professors had turned up “isolated expressions of concern about his strong conservatism or a lack of open-mindedness.”

A subsequent interview of Scalia, “against the background of our investigation, satisfied our committee as to any question that had been raised,” Fiske said.

Scalia’s Italian heritage was saluted by Sens. Alfonse M. D’Amato (R-N.Y.) and Pete V. Domenici (R-N.M.) and noted approvingly by several other senators. Finally, Sen. Howell Heflin (D-Ala.) joined the praise, noting that his great-great grandfather had “married a widow who was previously married to an Italian-American.”

Scalia ended his testimony Tuesday evening and the committee today will turn to eight panels of 35 witnesses who have asked to testify.